January 22, 2019
The vast majority of people that I meet with because they have either a) been sued or b) want to sue someone else, are venturing into the realm of litigation for the first, and most likely only time in their lives.
They want to know what the process looks like, how long it takes, what their odds are of winning and, of course, how much it is going to cost. After I have explained all of the foregoing, the next question is usually whether they can expect to recover their attorney’s fees from the other side if they win.
It’s a fair question. After all, it does make some sense that a party to litigation should be made whole by the other party if the claims against them prove to be without merit. This is true for Plaintiffs that are forced to file a lawsuit to collect a debt that is owed to them for work that was already performed. It is also true for Defendants that are forced to expend valuable time and resources defending a claim that proves to be without merit.
Unfortunately, and to the dismay of the inexperienced litigant, the general rule is that attorney’s fees are almost never recoverable, even if you win. Like any rule in the legal context, there are exceptions.
Sometimes specific claims that derive from statute provide for an award of attorney’s fees as an element of damages. Some examples are claims for failure to pay sales commissions, claims for conversion (stealing) and claims to foreclose on a construction lien.
Another exception is a claim based on a written contract that expressly provides the prevailing party with the ability to recover its attorney’s fees incurred in connection with the enforcement of that contract. Those contractual provisions are generally enforceable and can be a very powerful tool in helping resolve a case at an early stage, especially if the contract provides one party with the ability to recover fees, but not the other.
There is a third possible avenue for the recovery of attorney’s fees, which involves claims that are “frivolous.” Every defendant in every lawsuit that has ever been filed (slight exaggeration here for effect) believes the claim against them is frivolous. But judges rarely agree. I have been practicing for almost 10 years. I’ve litigated hundreds of claims. I have seen attorney’s fees awarded as sanctions less than 10 times. Part of the reason that judges are so hesitant to sanction another party for a frivolous claim is that the courts are supposed to be an open forum, where people can come for relief when there is nowhere else to turn. If judges started handing out sanctions against unsuccessful litigants, it would send the message that “you can use the court system, but it’s going to cost you.”
What I ultimately tell clients is that they should approach litigation under the assumption that they are going to have to pay their own way. If they are awarded attorney’s fees and those fees are actually collected, that is a bonus.